CEO 94-30 -- July 14, 1994

ANTI-NEPOTISM

COUNTY PROPERTY APPRAISER DESIGNATING POSITION

HELD BY WIFE TO BE INCLUDED IN SENIOR

MANAGEMENT SERVICE CLASS

To: (Name withheld at the person's request.)

SUMMARY:

A county property appraiser would violate Section 112.3135(2)(a), Florida Statutes, were he to designate the position of chief deputy property appraiser, a position held by his wife, for inclusion into the Florida Retirement System's Senior Management Service Class, which would entitle her to increased benefits in the Florida Retirement System. In Slaughter v. City of Jacksonville, 338 So. 2d 902 (Fla. 1st DCA 1976), the Court concluded that it is only an increase in grade which elevates an employee to a higher rank or position of greater personal dignity or importance which constitutes an "advancement" or "promotion" within the contemplation of the anti-nepotism law. Here, there is an "advancement" or "promotion," where the designation substantially increases the wife's retirement benefits.

Although the proposed designation of his wife's position for inclusion into the Senior Management Service Class appears to be statutorily authorized, because the proposed designation would violate Section 112.3135(2)(a), Florida Statutes, and because the Property Appraiser and/or his wife would receive a special benefit as a result of his action of designating her position into the Florida Retirement System's Senior Management Class, his designation might violate Section 112.313(6), Florida Statutes, if done with wrongful intent.

QUESTION:

Does the Code of Ethics for Public Officers and Employees prohibit a county property appraiser from designating a position in his office which is held by his wife for inclusion into the Senior Management Service Class?

Under the circumstances presented, your question is answered in the affirmative.

By your letter of inquiry, we are advised that pursuant to the requirements of Chapter 93-285, Laws of Florida, which amended Section 121.055, Florida Statutes, effective January 1, 1994, to expand the Senior Management Service Class within the Florida Retirement System to include additional positions from local governments, community colleges, and Judicial Branch employers, . . . . , the Gilchrist County Property Appraiser, has advertised his intention to designate the position of Chief Deputy Property Appraiser for inclusion into the Senior Management Service Class. You advise that this position currently is held by his wife, who has held the position since she was first hired by him in 1965.

You advise that the Property Appraiser and his wife were the only employees of the Property Appraiser's office until 1973, when a third person was hired. Currently, there are three other positions in the office besides the Chief Deputy Property Appraiser's position. They are Office Clerk, Appraiser II, and Mapper. You advise that the Chief Deputy receives the same pay raises that the other employees receive.

Section 121.055(1)(b)1.c, Florida Statutes, is part of Chapter 121, Florida Statutes, also known as the "Florida Retirement System Act." It requires that the position designated for inclusion into the Senior Management Services Class be a non-elective managerial or policy making position filled by an employee who is not subject to a continuing contract and is serving at the pleasure of the employer without civil service protection and who either heads an organizational unit or has responsibility to effect or recommend personnel, budget, expenditure, or policy decisions in his or her areas of responsibility. Because property appraisers specifically are included in the definition of a "local agency employer" (see Section 121.021(42)(a), Florida Statutes), they are authorized by this section to designate a position in their offices for inclusion into the Senior Management Service Class.

Our review of the Final Bill Analysis and Economic Impact Statement on CS/HB 1959 (Chapter 93-285, Laws of Florida), prepared by the House of Representatives' Committee on Employee and Management Relations, and the language used by the Legislature leads us to conclude that the understanding of the bill's drafters or the legislative intent was that the positions designated for inclusion in the Florida Retirement System's Senior Management Service Class already would be filled, rather than be subject to new appointments of personnel to the positions. Such an interpretation is consistent with previous expansions of the Florida Retirement System's Senior Management Service Class by the Legislature since its establishment on February 1, 1987, when membership was strictly limited to those members holding positions in the Senior Management Service of the State Personnel System as established at Section 110.402, Florida Statutes (Executive Branch employees only). On January 1, 1990, the SMSC was expanded to include such local Senior Managers as community college presidents, appointed school superintendents, and the county manager and city manager of each local government participating in the Florida Retirement System, and such legislative managers as selected managerial staff of the Legislature, the Auditor General and his managerial staff, and the Executive Director of the Ethics Commission. Effective January 1, 1991, the SMSC was expanded further to include such State University System managers as the Executive Service of the State University System and State University Presidents and such State Board of Administration Managers as senior-level management with the State Board of Administration. These expansions of the SMSC did not require that each designated position either be readvertised or that a new appointment to the position be made.

You advise that the Property Appraiser believes that the position of Chief Deputy qualifies under the amendment for inclusion into the Senior Management Service Class. He also contends that the designation "is to the position and not to the person." Should his wife resign, retire, or otherwise be separated from her employment, the position will continue with the Senior Management Service Class designation, you advise.

In its December 17, 1993 memorandum to local agency employers, the Department of Management Services, Bureau of Enrollment and Contributions, indicated that designation of a position, among other things, entitles the person employed in the position to enroll in either Plan HM or Plan HO of the Senior Management Service Class retirement plans. According to the Bureau, Plan HM entitles members of the Senior Management Service Class to membership in the Florida Retirement System. Plan HO is an option for those eligible Senior Management Service Class members from the local government level who wish either to get into or to remain with an annuity provided by his or her local agency. In either case, employer contributions to the Florida Retirement System are higher than they would be if the position designations are not made. Persons employed in Florida Retirement System Senior Management Class positions receive higher levels of benefits, as well. For example, rather than a ten year period of vesting for retirement benefits, Senior Management Service Class members vest in seven years. Senior Management Service Class employees also receive 2% credit towards retirement for every year of service, rather than the 1.6% received by other government employees. In a telephone conversation with our staff, you advised that all Gilchrist County employee retirement benefits currently are paid into the Florida Retirement System. However, should the position of Chief Deputy Property Appraiser be designated for inclusion into the Senior Management Class, the County's retirement contribution for that position would increase from the 17.06% that it pays for regular County employees to the 23.07% that it pays for members of the Senior Management Service Class.

Within the Code of Ethics for Public Officers and Employees, the Anti-Nepotism Law provides in relevant part:

RESTRICTION ON EMPLOYMENT OF RELATIVES.--A public official may not appoint, employ, promote, or advance, or advocate for appointment, employment, promotion, or advancement, in or to a position in the agency in which he is serving or over which he exercises jurisdiction or control any individual who is a relative of the public official. An individual may not be appointed, employed, promoted, or advanced in or to a position in an agency if such appointment, employment, promotion, or advancement has been advocated by a public official, serving in or exercising jurisdiction or control over the agency, who is a relative of the individual. [Section 112.3135(2)(a), Florida Statutes.]

This provision prohibits a public official from promoting or advancing, or advocating the promotion or advancement of, a relative in the agency he serves or over which he exercises control. For purposes of this law, the term "relative" includes one's wife. See Section 112.3135(1)(c), Florida Statutes. The issue, then, is whether the Property Appraiser's designation of the position of Chief Deputy Property Appraiser, a position held by his wife, for inclusion into the Florida Retirement System's Senior Management Service Class constitutes a promotion or advancement, which would violate Section 112.3135(2)(a).

In CEO 93-15 and CEO 90-62, we noted that prior to the 1989 transfer of the anti-nepotism law into the Code of Ethics for Public Officers and Employees, that provision (formally Section 116.111, Florida Statutes) was interpreted by a number of Attorney General's opinions whose reasoning we essentially have adopted in issuing our opinions involving Section 112.3135. Thus, in CEO 90-62, we opined that Section 112.3135(2)(a) was not violated where a city police chief and his father both worked in the police department and where the father was employed there prior to his son's becoming chief. Similarly, in CEO 93-15, we opined that a hospital district board's ratification of the chief executive officer's bonus recommendation for the brother of a board member did not constitute a prohibited promotion or advancement in violation of Section 112.3135(2)(a).

In both CEO 90-62 and CEO 93-15, we referenced Slaughter v. City of Jacksonville, 338 So. 2d 902 (Fla 1st DCA 1976), which examined the question of whether a merit pay increase constituted a "promotion" or "advancement" under the terms of the anti-nepotism law. In Slaughter, the Court concluded:

It is our view that it is only an increase in grade which elevates an employee to a higher rank or position of greater personal dignity or importance and is an advancement or promotion.

Id. at 904. Thus, Slaughter, whose father was the Clerk of the Circuit Court, was permitted to keep the merit pay increase he had received during the course of his employment in the Clerk's Office, as it did not advance or promote him to the next civil service grade. Slaughter's salary increase remained within the maximum and minimum limits for his civil service grade.

In applying this decision in CEO 90-62, we concluded that since the anti-nepotism law does not address any other aspect of the supervisory authority a public official may have over a relative and because it did not appear that the police chief's father had been promoted or advanced within the meaning of the law, Section 112.3135(2)(a) did not prohibit them from serving together. See also AGO 077-36 and AGO 074-255. In CEO 93-15, we concluded that because it appeared that the relative of a hospital district board member was at a specific pay grade and we had no indication that the recommended bonus constituted an increase in grade or elevation to a higher rank, the board's ratification of the bonus did not constitute an "advancement" or "promotion" under the Slaughter decision.

In contrast to those applications of the Slaughter decision, here we find that the Property Appraiser's proposed designation of the position held by his wife into the Florida Retirement System's Senior Management Service Class with its attendant increased benefits would constitute an "advancement" or "promotion" within the meaning of Section 112.3135(2)(a). Unlike Slaughter, we do not find that the Property Appraiser's wife's retirement benefits would correspond to those of her pay grade. Her benefits would increase substantially. Therefore, we find that the proposed designation would constitute an advancement or promotion within the meaning of Section 112.3135(2)(a).

In CEO 90-62, we observed that the Police Chief's discretion regarding the terms or conditions of his father's employment was not unlimited. We cautioned him to avoid even the appearance of favoritism toward his father when supervising the members of the police force, as use of his authority to favor his father could constitute a violation of Section 112.313(6), Florida Statutes, which provides:

MISUSE OF PUBLIC POSITION.--No public officer or employee of an agency shall corruptly use or attempt to use his official position or any property or resource which may be within his trust, or perform his official duties, to secure a special privilege, benefit, or exemption for himself or others. This section shall not be construed to conflict with s. 104.31.

For purposes of this provision, the term "corruptly" is defined as follows:

'Corruptly' means done with a wrongful intent and for the purpose of obtaining, or compensating or receiving compensation for, any benefit resulting from some act or omission of a public servant which is inconsistent with the proper performance of his public duties. [Section 112.312(9), Florida Statutes.]

In previous opinions, we have observed that this statute requires a determination of intent which is extremely difficult to make while rendering an advisory opinion, since intent is to be determined from an examination of all relevant circumstances. See CEO 93-6 and the opinions cited therein. Nevertheless, while no final conclusion can be drawn as to whether the Property Appraiser's proposed designation of his wife's position into the Senior Management Service Class would constitute a misuse of position, we believe that if done with wrongful intent, it would. Although the Property Appraiser is statutorily authorized to make the designation, because we have already determined that a violation of Section 112.3135(2)(a) would exist were he to make the designation, and because the designation would clearly benefit his wife and possibly himself, his making the designation would be inconsistent with the proper performance of his public duties and therefore would be done "corruptly," if done with wrongful intent.

Accordingly, we find that Section 112.3135, Florida Statutes, prohibits the Property Appraiser from designating the position of Chief Deputy Property Appraiser, a position held by his wife, for inclusion in the Senior Management Service Class. Under the circumstances presented, we also find that his designation of the position held by his wife for inclusion into the Senior Management Service Class also could constitute a violation of Section 112.313(6), Florida Statutes.